The main legal point established in the judgment is the importance of prior user, distinctiveness, and acquired distinctiveness of a trade mark in establishing a prima facie case for infringement.

( 1 ) THE allegations in the plaint and the interim application are that the Plaintiff is using the trade mark "kesh Nikhar" since 1935 and is its proprietor under registration no. 216597 of 17/7/1963. This trade mark has been renewed from time to time. The plaintiff has also applied for registration of the trade mark "nikhar Beauty Bar" on 3/3/1997 vide application number 216597 in Class 3. It has also been pleaded that the Plaintiff is the registered proprietor of the Copyright No. A-30760/70 of Kesh nikhar Label. Kesh Nikhar has been continuously, regularly and extensively used by the Plaintiff in respect of soaps since 1935 with past sales of approximately Rs. 200. 00 crores, and present sales of Rs. 30. 00 crores. It is the Plaintiff s assertion that the word "nikhar" is an essential and integral part of the registered trade mark. Approximately rs. 2. 00 crores are being spent annually on advertisement of "kesh Nikhar". In June 2000 the Plaintiff learnt that the Defendant had marketed a soap with the mark nikhar . Hence the present suit for infringement of Trade Mark and Copyright, and for passing-off was filed seeking an injunction and orders for the rendition of accounts was filed. On 16/6/2000, K. Ramamoorthy J. granted an ex parte ad interim injunction restraining the Defendants from using the name nikhar until further orders.

( 2 ) THE Defendants reply is that Plaintiff has been using the Trade Mark PESCO kesh NIKHAR and has never used the Trade Mark nikhar and has mischievously sought to mislead the Court by filing a wrapper of its product under the Trade Mark nikhar which word and wrapper has not been previously used by the Plaintiff, org MARG, reputed to be an independent, largest and well respected retail audit body had not reported the use of the brand name NIKHAR in its Report of May 2000. It is the Defendant s submission that the competing Trade Marks are PESCO KESH nikhar and GODREJ NIKHAR, which are structurally, phonetically and visually not deceptively similar. It is submitted that whilst the Plaintiff s product is a shampoo in cake form the Defendant s product is a bath soap; there is a significant price difference between them; the packaging is entirely different - one is in a carton the other in a wrapper, Plaintiffs product is packed vertically and Defendant s horizontally. It has further been averred that since the Trade Marks GODREJ and PESCO have been prominently used, confusion or deception is inconceivable. The Defendant is stated to have spent in excess of Rs. 1. 00 crore on publicity. The Defendant has also asserted that the word KESH NIKHAR per se had not been registered and what is registered is a composite trade mark containing the device of a woman combing her hair with the names PESCO as also KESH NIKHAR present thereon. According to the Defendant the Plaintiff has never used the word NIKHAR BEAUTY BAR, KESH nikhar or NIKHAR.

( 3 ) BEFORE discussing the plethora of precedents pressed by both parties I shall deal with their cartons/wrappers. Having examined that carefully I am of the view that there is insignificant commonality between the Plaintiff s carton, which is in red with an artwork of a woman, and the Defendant s wrapper, which is in yellow with a female model s photograph. There is no likelihood of any confusion, leave alone deception, between them. I hold the same opinion even in respect of the Plaintiff s wrapper on page 62-A which is in purple/lilac and contains an outwork of flowers. The pagination of the plaint, applications and documents, is significantly tell-tale, in that it is evident that the wrapper was included in the documents just before the plaint was filed, (in all likelihood created at that time also), with a view to cause an impression that nikhar soap was already being marketed by the Plaintiff. Had the Plaintiff already put this product on the market it would have been boldly stated so in the plaint and there would have been no reason fo